Delaware avoidance action

Introduction

In July of 2011, the Chapter 7 Trustee (the "Trustee") in the Ultimate Acquisition Partners (formerly "Ultimate Electronics") bankruptcy began filing complaints to avoid and recover payments which the Trustee alleged were avoidable transfers under section 547 of the United States Bankruptcy Code.  Earlier this month, the Trustee filed another round of preference complaints seeking to recover what he contends are preferential transfers.  This post will look briefly at the Ultimate’s business, why the company filed for bankruptcy and provide some general information regarding defenses to a preference action.

Reasons Ultimate Electronics Filed for Bankruptcy

Prior to going in to bankruptcy, Ultimate Electronics sold high-end home entertainment and consumer electronics throughout the western and mid-western United States.  Based in Thornton, Colorado, Ultimate Electronics employed approximately 1,500 employees before it filed for bankruptcy.  According to pleadings filed with the Delaware Bankruptcy Court, Ultimate attributed its bankruptcy filing to a "significant downturn in business at certain of the Debtors’ locations, coupled with refusal by certain of Debtors’ vendors to ship goods to the Debtors on open credit."  By filing for bankruptcy, Ultimate was hoping to close under performing stores, re-negotiate its leases and improve its profitability.

Conversion from Chapter 11 to Chapter 7

Plans quickly changed for Ultimate after the company filed for bankruptcy.  Nine days after filing for bankruptcy, on February 4, 2011, the company filed a motion with the Bankruptcy Court seeking approval of going out of business sales.  Within two months of filing the going out of business motions, Ultimate had sold substantially all of its assets.

On April 25, 2011, Ultimate Electronic’s DIP lender issued a "Termination Event" under Ultimate’s Final Cash Collateral Order (the "DIP Order").  Under the DIP Order, if the lenders’ termination notice is not contested within five business days, the automatic stay is lifted in favor of Ultimate’s DIP lender.  Ultimate filed its Motion to Convert to Chapter 7 one day after receiving the Termination Event.  The Bankruptcy Court converted Ultimate’s bankruptcy to a Chapter 7 liquidation on May 3, 2011.  The following day, Alfred T. Giuliano was appointed the Chapter 7 Trustee for Ultimate Electronic’s bankruptcy proceeding.

The Preference Actions

The Trustee in the Ultimate Electronics bankruptcy is represented by the law firm Pachulski Stang Ziehl & Jones LLP.  The bankruptcy proceeding, along with the preference actions filed by the Trustee, are before the Honorable Mary F. Walrath.  Judge Walrath is a former Chief Judge of the Delaware Bankruptcy Court. 

For reader’s looking for more information concerning preference litigation, attached is a booklet I prepared on the subject:  "A Preference Reference:  Common Issues that Arise in Delaware Preference Litigation."

Jason Cornell is a partner and bankruptcy attorney with the law firm Fox Rothschild LLP.  Jason is admitted and practices before the United States Bankruptcy Court for the District of Delaware.  You can reach Jason at 302 427 5512 or jcornell@foxrothschild.com.

This week, Edward Gavin, the liquidating trustee (the "Trustee") for the Ultimate Escapes bankruptcy, filed preference complaints against several defendants.  Under the complaints, the Trustee alleges that the defendants received preferential transfers that are avoidable under 11 U.S.C. section 547 of the Bankruptcy Code.  For those unfamiliar with this bankruptcy proceeding, Ultimate Escapes ("Ultimate" or the "Debtor") filed petitions for bankruptcy in the Delaware Bankruptcy Court on September 20, 2010. 

Prior to bankruptcy, Ultimate was in the luxury destination club industry.  The company provided members with access to high-end residences and resorts in the U.S. and around the world.  According to the company’s declaration in support of its bankruptcy pleadings (the "Declaration"),  Ultimate operated 119 "luxury club residences," most of which were owned by the Debtor.  Decl. at *2.

Ultimate blames its bankruptcy on the declining sales that followed the 2008 recession.  As demand for the company’s services declined, Ultimate was faced with a liquidity problem and inability to service its debt.  The company tried unsuccessfully to negotiate an out of court restructuring with its lenders.  Once negotiations failed, Ultimate decided that filing for bankruptcy would provide the most value to creditors.  Decl. at *3. 

Approximately fourteen (14) months after filing for bankruptcy, Ultimate filed its Second Amended Chapter 11 Liquidating Plan.  On December 8, 2011, the Bankruptcy Court entered an order confirming the Debtor’s Plan.  The Plan of Liquidation became effective on January 3, 2012 and the Trustee was named soon after.  The Ultimate bankruptcy proceeding is before Judge Brendan Shannon.  The Trustee is represented by the law firm Polsinelli Shughart.

For reader’s looking for more information concerning preference litigation, attached is a booklet I prepared on the subject:  "A Preference Reference:  Common Issues that Arise in Delaware Preference Litigation."

Jason Cornell is a bankruptcy attorney with the law firm Fox Rothschild LLP.  Jason is admitted and practices before the United States Bankruptcy Court for the District of Delaware.  You can reach Jason at 561 804-4415, or jcornell@foxrothschild.com.

Introduction

In January, Jeoffrey L. Burtch, the Chapter 7 Trustee (the "Trustee") in the ManagedStorage bankruptcy proceeding, commenced adversary proceedings in the Delaware Bankruptcy Court against various defendants.  As alleged in the complaints, the Trustee claims that the defendants received "preferential" payments from ManagedStorage (dba "Incentrix Solutions" or "Incentrix") and that the payments are subject to avoidance and recovery under the United States Bankruptcy Code (the "Bankruptcy Code").  This post will look at the Incentrix bankruptcy, why the company filed for bankruptcy as well as some of the issues that arise in preference litigation.

The Bankruptcy Proceeding

Incentrix filed Chapter 11 petitions for bankruptcy in February of 2009.  At the time the company filed for bankruptcy, it was based in Denver, Colorado and operated offices in Illinois, Washington, California, New Jersey, Pennsylvania, New York, Oregon, Texas, Colorado and the United Kingdom. According to a Declaration of Incentrix’s Chief Financial Officer (the "Declaration" or "Decl."), the company’s business consisted primarily of the resale of technology hardware and software products, as well as maintenance contracts.  Decl. at *3.  Aside from its resale business, the company also provided managed IT services.  Decl. at *3.

Continue Reading Chapter 7 Trustee in ManagedStorage (aka Incentrix Solutions) Files Preference Actions

In November, Jeoffrey Burtch, the Chapter 7 Trustee in the AE Liquidation bankruptcy (formerly "Eclipse Aviation"), began filing preference actions against various creditors of Eclipse.  Eclipse Aviation began as a New Mexico manufacturer of small jet aircraft.  The company filed for bankruptcy in the United States Bankruptcy Court for the District of Delaware on November 25, 2008.  As stated in the Affidavit in Support of Eclipse’s Bankruptcy Motions,  Eclipse began approximately 12 years ago as a manufacturer of aircraft intended for individual pilots, small companies seeking corporate aircraft and air taxi services serving smaller hubs.  In order to produce affordable aircraft, Eclipse created a "manufacturing strategy" based upon low production costs and high volume. 

Over time, Eclipse was unable to meet the production goals necessary to sustain a positive cash flow. Eclipse tried to increase production through additional financing and increase its revenue by raising its prices. When neither were successful, Eclipse began to lay off employees and seek a buyer. After looking at all its options, Eclipse decided that a sale of its assets under section 363 of the Bankruptcy Code was the best way to proceed.

On March 5, 2009, the Eclipse bankruptcy converted from a chapter 11 reorganization to a chapter 7 liquidation.  Jeoffrey Burtch was appointed the chapter 7 trustee the same day the case converted to chapter 7.  The Trustee is represented by the law firm Cooch and Taylor, P.A.  This bankruptcy proceeding, as well as the preference actions, are before the Honorable Mary F. Walrath.  Judge Walrath previously served as the Chief Judge of the Delaware Bankruptcy Court. 

For readers not familiar with preference litigation, below are some prior posts I have written on the subject:

Decision in Archway Cookies Grants Summary Judgment Based on Ordinary Course of Business Defense

Using the Solvency Defense in a Preference Action: In re Bernard Technologies

Recent Decision in Pillowtex Addresses Elements of the Ordinary Course of Business Defense in a Preference Action

Defending Avoidance Actions: The "Settlement Payment" Safe Harbor Receives Broad Interpretation Under In re Elrod Holdings

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Jason Cornell practices with the law firm Fox Rothschild LLP in Wilmington, Delaware.  You can reach Jason at 302 427 5512, or jcornell@foxrothschild.com

Introduction

Recently, over 180 adversary actions were filed in the MPC Computers bankruptcy.  The adversary actions fall generally in to two categories – preference actions filed by MPC’s Committee of Unsecured Creditors and breach of contract actions filed by MPC.  This post will look briefly at why MPC filed for bankruptcy and discuss what may happen next now that the adversary actions are underway.

Background on the MPC’s Business and Events Leading to Bankruptcy

As reflected in the declaration of MPC’s CFO,  Curtis Akey,  MPC (formerly Gateway) provided computer-based products and services to mid-sized businesses, government agencies and educational organizations (read here the Declaration of Gateway’s CFO in Support of Debtors’ Chapter 11 Petitions).  MPC-Pro, LLC acquired Gateway in October of 2007.  As a result of this acquisition,  MPC’s revenue rose to $895 million.  Six months after the acquisition, the company decided to stop manufacturing at its Tennessee facility and outsource a substantial portion of manufacturing to Flextronics at its Juarez, Mexico facility. 

The Flextronics’ facility came on line slower than planned and with limited production.  On October 28, 2008, Flextronics informed MPC that it was discontinuing its supply of products and services to MPC.  As stated in the Akey Declaration, MPC’s purchase of Gateway, followed by the unsuccessful outsourcing to Flextronics and the overall lack of liquidity led to the present bankruptcy filing.

The Adversary Actions

According to the adversary complaints filed by MPC’s Creditors’ Committee, the Committee and MPC entered into a stipulation on October 12, 2010.  The stipulation appoints the Committee as representative of MPC and confers standing on the Committee for purposes of investigating and prosecuting avoidance actions under chapter 5 of the Bankruptcy Code.  Judge Walsh, the bankruptcy judge presiding over the MPC bankruptcy, approved the stipulation on October 21, 2010. 

Unlike the preference actions, the breach of contract actions are brought directly by MPC (versus the Creditors’ Committee).  Through these actions, MPC alleges various defendants received goods from the Debtors which were never paid for. 

Given the size and frequency of bankruptcy filings in Delaware, judges in the Delaware Bankruptcy Court often (but not always) enter uniform scheduling orders that provide parties with similar dates to serve discovery, complete motion practice, etc.. Scheduling orders in preference actions usually allow the parties 90 to 120 days to complete fact discovery and require the parties participate in mediation.  Click here to review a copy of one of the form scheduling orders posted to the Delaware Bankruptcy Court’s web page.

The MPC bankruptcy, including the adversary actions, are before Honorable Peter J. Walsh.  Judge Walsh is the former Chief Judge of the Delaware Bankruptcy Court.  MPC is represented by Reed Smith LLP and the Creditors’ Committee is represented by Drinker Biddle and Reath LLP. 

For readers not familiar with preference actions, below are prior posts I have written on the subject:

Decision in Archway Cookies Grants Summary Judgment Based on Ordinary Course of Business Defense

Using the Solvency Defense in a Preference Action: In re Bernard Technologies

Recent Decision in Pillowtex Addresses Elements of the Ordinary Course of Business Defense in a Preference Action

Defending Avoidance Actions: The "Settlement Payment" Safe Harbor Receives Broad Interpretation Under In re Elrod Holdings

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Jason Cornell practices with the law firm Fox Rothschild LLP in Wilmington, Delaware.  You can reach Jason at 302 427 5512, or jcornell@foxrothschild.com

In August, the Chapter 7 Trustee in the National Wholesale Liquidators ("NWL") bankruptcy filing approximately 90 preference actions.  Just recently,  the Trustee filed over 100 more preference actions in NWL.  In November of 2008, I wrote about the commencement of NWL bankruptcy (read my prior post concerning the NWL bankruptcy here).  As indicated in the prior post, NWL filed for bankruptcy in agreement with its lenders that it would either find a buyer while in bankruptcy, or convert and liquidate under Chapter 7 of the Bankruptcy Code.  The NWL bankruptcy converted to Chapter 7 on February 26, 2009. 

The Chapter 7 Trustee hired Archer and Greiner to represent him in this bankruptcy proceeding.  Pursuant to the summons filed with the most recent preference actions, the Court scheduled a pretrial conference on February 16, 2011.  These adversary actions, as well as the NWL bankruptcy proceeding, are before the Honorable Mary F. Walrath.  Judge Walrath previously served as Chief Judge of the Delaware Bankruptcy Court

Below are other posts I have written concerning avoidance actions in bankruptcy court:

Decision in Archway Cookies Grants Summary Judgment Based on Ordinary Course of Business Defense

Using the Solvency Defense in a Preference Action: In re Bernard Technologies

Recent Decision in Pillowtex Addresses Elements of the Ordinary Course of Business Defense in a Preference Action

Defending Avoidance Actions: The "Settlement Payment" Safe Harbor Receives Broad Interpretation Under In re Elrod Holdings

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Jason Cornell practices with the law firm Fox Rothschild LLP in Wilmington, Delaware.  You can reach Jason at 302 427 5512, or jcornell@foxrothschild.com

Introduction

On September 1, 2010, Judge Christopher S. Sontchi of the United States Bankruptcy Court for the District of Delaware issued a decision finding that the payment practices between a creditor and debtor satisfied the ordinary course of business defense.  Judge Sontchi’s decision is worth review as it provides a current look at one of the most common defenses to a preference action.  Better still, motions for summary judgment based on ordinary course of business often fail due to fact intensive nature of the defense.  It is helpful, then, to understand the reasons for the court granting summary judgment and the facts the court found significant.

Background

Archway Cookies ("Archway") filed for chapter 11 bankruptcy protection on October 6, 2008.  Approximately three months after filing for bankruptcy, the company converted to a chapter 7 liquidation and a chapter 7 trustee (the "Trustee") was appointed.  The Trustee commenced several avoidance actions, one of which was against Detroit Forming, Inc. ("DFI").  DFI manufactures plastic trays which it sold to Archway for approximately two years prior to the petition date.  Pursuant to the parties agreement, DFI shipped goods to Archway on net 20 day payment terms.  Opinion at *3.

Continue Reading Decision in Archway Cookies Grants Summary Judgment Based on Ordinary Course of Business Defense

Introduction

Earlier this month, the Liquidating Trustee in the Intermet bankruptcy filed preference actions against various defendants.  This post will look at the nature of Intermet’s business, why the company filed for bankruptcy and the circumstances behind the formation of the Liquidating Trust that is pursuing the preference actions.

As I often do on this blog, much of the information used in this post comes from information provided in the Debtors’ Declaration in Support of its Chapter 11 Petitions.  Intermet filed for bankruptcy in the United States Bankruptcy Court for the District of Delaware on August 12, 2008 (the "Petition Date").  In support of its bankruptcy filings, Intermet filed a Declaration of William H. Whalen, Intermet’s Chief Financial Officer (the "Whalen Declaration").  The Whalen Declaration provides a good summary of Intermet’s business operations and the events leading the company into bankruptcy.  A copy of the Whalen Declaration is available here.

Continue Reading Liquidating Trustee of Intermet Corporation Files Preference Actions in Delaware

Introduction

In July of this year, Ascendia Brands, Inc., began filing preference actions against various defendants who allegedly received payments from Ascendia.  According to the complaints, the defendants, many of whom were former customers of the company, received "avoidable" payments either before or after Ascendia filed for bankruptcy.  Citing various provisions of the Bankruptcy Code, Ascendia alleges that the recipients of these payments are required to return the funds to Ascendia.  This post will look briefly at Ascendia’s business operations, why it filed for bankruptcy and what the next steps will likely be for the preference actions Ascendia filed with the Bankruptcy Court.

Continue Reading Ascendia Brands Files Over 200 Preference Actions in Delaware Bankruptcy Proceeding

 Introduction

Recently, the LandSource Creditor Litigation Liquidating Trust (the "Litigation Trust"), commenced various avoidance actions in the United States Bankruptcy Court for the District of Delaware.  This post will look briefly at the events leading to the commencement of this bankruptcy proceeding. Further, the post will look at some of the issues that confronted the Debtor during the reorganization process.

Background

LandSource Communities Development, LLC ("LandSource"), filed petitions for bankruptcy on June 8, 2008.  LandSource is a home builder.  Like other builders throughout the U.S., the company was severely affected by the decline in the U.S. real estate market, as well as the decrease in the availability of credit following the subprime mortgage crisis.  The drop in the demand for housing led to increased inventories of homes for builders.  This further depressed prices, worsening conditions even more for LandSource.

 

Continue Reading LandSource Communities Development Commences Preference Actions